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More thoughts on the ‘Music as Free’ Debate

My original post on ‘Why Music Can’t ‘Just be Free’ has stirred up something of a hornet’s nest of debate and half a dozen blog posts in response. Reading through those and the comments attached to them a number a number of recurring themes have surfaced which I’ll address here.

Please do comment here and elsewhere. Where the debate happens doesn’t really matter but the debate is valuable, because even if people don’t change their opinions, they at least get exposed to the detail of the thinking on both sides of the debate.

Many argue that copyright shouldn’t exist. I believe it should. Does it need revising for the 21st century? Absolutely. Movements like the Creative Commons serve a vital role in moving the debate forward. But us, as consumers do not have the right to chose whether a rights owner has the right to enforce copyright. When an artist signs a contract they tell the label to collect money for the fruits of their creative labour. So the people who have the right to chose whether copyright can be enforced are the artists, labels, publishers and collection societies. That doesn’t mean we, as consumers, can’t complain, vote with our feet and try to get those parties to change their stance. But it’s their right to chose not ours. It’s no more our right to chose than somebody finding a wallet on the street deciding it is now theirs. Sure you can probably get away with doing so, but it’s not your moral right. (And before you ask, no I do not believe copyright infringement is theft, even legally speaking it’s not.)

There isn’t a black and white distinction between free and paid. Hopefully my last three Music Mistakes, Myths and Misconceptions posts help clarify this point. The argument that ‘music is already free therefore it is free’ ipso facto, misses this point. It has also been used as the basis for the case that music should be free and that artists will make their money elsewhere. Thus, goes the argument, record labels and, to some degree publishers, are wastage and excess that should and will disappear. The problem with this is that somebody needs to play that function and currently record labels and publishers do it best. Are labels perfect? Of course not. Should many of them be massively overhauled? Yes. But most artists need support if they are too fulfill their potential and thrive.

And most artists do want to get signed to record labels, however successful their social strategies might be. And this isn’t just my opinion, I recently surveyed hundreds of unsigned artists and asked them about their aspirations. The vast majority wanted to get a record deal. The vast majority wanted to make money out of selling their music. So whilst many have argued that artists just want to be musicians and not make money, this simply isn’t the case. Don’t get me wrong, I’m not arguing that musicians’ are some money grabbing bunch, simply that they’d like to be able to get paid for doing what they love and ideally be able too give up their day jobs. Not get a yacht or private jet, just be able to make a decent living.

People have cited Radiohead as an example of an artist that went free. They didn’t. No one could download the album for free – you had to pay a minimum ‘administration’ fee. And then Radiohead used the success of the initiative to secure a lucrative distribution deal with XL Recordings for that outdated concept, the CD. Radiohead made more money out of In Rainbows than many other of their albums. They played the system to get better contract terms and to drum up interest.

And finally, some music history for you

Many people have referred to how musician’s thrived in the days before copyright. I’m sorry but this simply isn’t the case. In the middle ages musicians could largely be grouped into three groups

Troubadors: the elite of musicians, but also the elite of society, typically nobility and royalty (including Richard Lionheart of England). They didn’t make or even ask for money, it was an elitist past time

Minstrels: artisans who traveled around, depending on the patronage of the wealthy and aristocracy, such as Eleanor Aquitaine. A small number become fixtures at a court, most were forced to travel around most of their lives in search of the next fee

Jongleurs: these were the majority of musicians. Typically itinerant, and paid infrequently and poorly. A poor existence that was only marginally more lucrative than being a field tilling serf

After the middle ages royal and noble courts developed the practice of supporting retained musicians who would be commissioned to create compositions. These musicians were vulnerable to the whims of their paymasters and many musicians considered great now, struggled financially in their life times. Mozart died in poverty, buried in quicklime in a paupers’ grave.

Musicians like most artists in history before effective monetization of copyright struggled for money. Some would argue that this is the price artists should pay, it’s part of paying the creative dues. I don’t.

30 thoughts on “More thoughts on the ‘Music as Free’ Debate”

Good clarifications, although it’s a shame that numerical evidence is reserved for paying clients – I totally understand that it’s an asset for a research/analysis company so can’t be given away for free, but maybe there are sections which could be used to publicise the bit people generally pay for which could still be useful?
Either that or perhaps someone could conduct some external public research?

At the end of the day, your point is valid concerning the right of the artist/record company to choose their methods, and the right of consumers to complain and vote with their wallets.

And it’s not surprising that currently most artists would like to have a record deal and make money from selling music – I’d say the same if asked. A record deal suggests an element of security and promotion, and I’d love to be earning money and fame from being a guitarist.

But most musicians aren’t going to get a record deal or make any money. It’s as much of a myth as affluent musicians before copyright and monetisation. Some musicians have huge success, some have average success, and some have none.

There will be hugely successful acts like Radiohead and Nine Inch Nails who can leverage large scale success or bargaining power by using social media and free music to promote themselves.

There will be some acts who can achieve a level which might support them from using social media and free music to promote themselves.

And there will be some acts who will never, ever achieve success, even if they paid people to download their songs! Arguing that musicians struggled to be paid pre-copyright and royalty doesn’t really hold water when you look at the musicians who have struggled to get their earned royalties in the last 100 years.

Looking at figures for music piracy and legally available free music services, and consumers are voting fairly clearly, which means the current model is dying.

Artists meanwhile would prefer to continue to make money.

So I’d be really interested in hearing how you suggest overhauling the current system to go against the consumer’s desire for free music to provide artists with a significant wage?

Yes, you’re right. This is not black/white when it comes to “free or paid?” and yes, i do share your opninion: artists among others deserve decent living. if they’re real artists. NOT all the crap, that is pushed off from Majors with a cosmic speed, every single day. All that crap, that millions are forced to hear over radio, TV, etc.

You’re musician. You do play on guitar, so i’m sure you know what i mean. Don’t you think there’s a difference between “creating music” and “factoring money from so-called-music”. I am sorry for my english, this is not my native language, but i hope you understand what i mean.

why do labels/majors refuse to admit, that people will never consider SUCH music (i don’t want to name examples, but, say, 50Cent) as something worth of paying? Do you have the answer. Why should consumers buy some crap for $1 / per song ?

Abosulute majority of people, i’ve talked to, or heard, they said something very the same: “i WILL pay for my favourite music, i will but give me the opportunity to CHOSE, and to try”.

that’s the point. Majors, instead of trying to resign and consider it, are continuosly destroying their “business”. Not only they force people to pay $1 for so-called-top-of-the-chart song (why it’s $1 btw?), but they’re going after ISPs, SourceForge, consumers, Governments, to bring each and averybody to the court.

this is dead wrong way.
hopefully, i was able to give you something to think of.

p.s. just my thoughts, i am completely aware the game will never change — too much money on the bid.

Dan – I don’t disagree for a moment that there are many people who make little or now money from music thanks to copyright. Even some of those with big hits find themselves short. The manager of my old record label had a number 1 hit in the US in the 1980’s but he and his band were shocked to get nothing from their record label beyond their advance as all the revenue had been ‘recouped’ and as they didn’t write the songs they didn’t get any publishing royalties either.

One key theme which has emerged out of all this debate, and you’ve been key to driving this, is the need for effective monetization of the lower-mid tail. The layer of artists that sit somewhere between being not good enough for a decent sized label and too good for their bedrooms and garages. Forrester was already discussing writing a report on semi-pro music in 2009. I’ll probably get that bumbped up the agenda.

Max – you’re entirely right that highly commercialized, formulaic music is a big part of the major record labels’ output. Unfortunately the reason for this is that there is an appetite and market for it. The music industry relies on those who are not music ‘afficionados’ but just passive fans to buy music infrequently but in large numbers. Typically these music buyers opt for mass market immediately accessible music. The fact that so much of this music is still put out (in fact more so now than ever before) shows that there is a market for it. Just look at how reality music shows dominate top seller lists throughout Europe. But could there be a correlative link between this increased trend towards synthetic music and the downward turn in music spending? Quite possibly. What is driving these trends closer to each other is that in times of declining sales record labels are increasingly turning to safe bets. The question for me is whether this pandering to the mass market could be alienating the smaller but, arguably, more important aficionado minority?

We are desparately in need of a new music business model. The major labels have out lived their usefulness. They keep hiring and firing hoping if they get the right person for the job they can save themselves. They will go by the way of Tower Records and other “Bricks and Mortar” establishments. Why pay all that overhead when you don’t need to? Why spend 500,000 promoting a single? You don’t need to. What makes sense is to put the power where it “really” is anyway and that is with advertisers,brands.
If brands would use their power they could OWN the music industry. Think about it. You have “built in distribution” already because of the ad buys they already pay for. Why not use that space to promote music. Use TV for infomercials under the geise of a reality TV show. PAY for the music created by the songwriter/composers and become the “publisher”then sell downloads OR use it for promotions etc
Brands need an entertainemnt team onboard instead of a Madison avanue ad agency that is ripping them off for millions and hiding rate cards from them.
We are a coalition of over 700 entities in the music industry and are getting stronger every day. We are made up of brands and music industry companies who will form a partnership with joint ventures that will totally change the face of the music industry. Just watch what happens in the next 6 months. You will see more events like bands,brands and beyond in LA, the 2009 Country Artist DRAFT in Nashville in March 2009, if you work in either industry it is time to hook on to the train now because we are leaving the old model behind.
The bottom line is songwriters, artists, musicians, producers, engineers, managers et will be making more income than ever AND the rands will make enough money to pay for all their advertising. A real distribution of wealth between all parties.

Part of the trouble with respecting copyright comes from fans who don’t. Many of them want what they want, and will go to great lengths to get it, copyright be damned! If you say to them a “true fan” respects the artist enough to buy the work, they will turn on you. At this point,the public has spoken. The want the music and they want it free…whether you are a seasoned veteran or a busker on the street. Many of us musicians who are on the local level will NEVER be able to give up our day jobs because of it, and higher level musicians will be forced to branch out to non-music enterprises such as pandering to fans doing meet and greets, selling kitschy merch, and what not. That’s the “wave” of the future.

Fans want the music free because they can get it without paying for it. It wasn’t always like that. The day you can sneak food off the shelves while hiding behind online anonymity we will all be in trouble. I am a full time musician and have had to diversify my career into teaching, recording, producing as well as performing just to keep up. I really hope this gets sorted out in my lifetime, because its really frustrating — how about we make all promotional music low res and mono so everyone can preview all music for free. Then if you want it in stereo, you pay for it !

1.Any musician can upload their digitally recorded song and obtain a copyright of that song online. A portion of that music is automatically created for sample purposes. Copyright holders are given a unique serial number and must identify themselves with a “fingerprint” device. Copyright transfers are recorded in a like manner

2.Someone has developed the technology to electronically “hear” the particular digital profile of the recorded music. (I believe this one already exists)

3.If someone likes the music, they can buy it at whatever price the copyright owner wants to set in order to re-coup their costs of production and make a reasonable profit. There may be some pre-settings for quantity breaks at higher levels of play. The market, both individual or commercial, will either buy at the set price or not.

4. If a major performance artist wants to record and release the song, the author would be entitled to a larger mechanical royalty than is currently required.

5. A service that replaces PRO’s and all other collection entities registers whenever that music is played.

6. ALL playing devices including movie, radio, television, pods, walkmans,gaming devices are linked to the “net” much like telephones are today. Once the play is detected, a certain amount is automatically deducted from an “account” that has been established as part of the capability to use the device.

7.The value will be deposited DIRECTLY into the account of the copyright holder(s). No need for distribution/collection entities and their mark-up

8.The copyright owner does not give up copyright percentages in exchange for the shell game of a publisher or record label. But instead the owner will contract for specific services to produce, market and distribute music as a work for hire or a commission against sales.

9. These accounts may not even be “money” in the conventional sense that we use now, but it would be a kind of value that could be used by the copyright holder. Perhaps a modern type of barter. We have discovered that what we used to think of as cash morphed into checks, now morphed into “credit” which is a somewhat illusionary concept dependent on confidence in the general economy.

10.All music has been “tagged” and keyworded and associated with like products as it is entered into the “net” system. So that anyone who enjoys a genre, artist, mood or subject can search for additional products themselves. No need for filters or social networks. In fact the whole idea of “MARKETING” is a fairly recent (20th century) idea which was used to create demand for mass-produced goods by persuading people that they NEED to buy something (when in reality they may not need it at all). But it has been amply demonstrated by the Music Industry that there is money to be made by the psychology of the crowd, desire and addiction.

There will always be those who do not want to “pay” for music. But I think that some of that attitude is related to paying the corporate machinery for their arrogance and excesses and even their treatment of writers and performers. It seems they might be more inclined to pay if they knew that a much smaller amount would go directly to the artists. As technology advances, this may be more possible.

This might be the start of a way in which music which is appreciated can truly benefit the creator of that music.

There is no question that musician’s never really made much money throughout history without patronage. And the media corporations did enable some to reap enormous benefits. But things have become unbalanced and technology has now advanced to the point where a re-balancing is possible for the real benefit of more musicians and we should embrace it.

It is truly ironic that many of the very (younger) people who think nothing of acquiring music that is not intended to be free will themselves derive a substantive part of their livings from Intellectual Property. IP is the commodity of the future. The creative fruits of musician’s labors have been completely devalued. I believe that an equitable model is needed and may in fact ultimately benefit a wider cross section of lesser-known artists. However, until this is achieved, we apparently need to start teaching ethics to 1st graders and of course, their parents. Mom, Dad, would you knowingly let your child steal a candy bar?

I really liked Jackie’s post as I feel it goes in the right direction of how to monetize music even in a world where no one wants to pay for it.

If every piece of music that is streamed, aired or downloaded is registered, tagged and/or fingerprinted or watermarked, then computers can track usage and a designated entity can make ACH or PayPal payouts to the copyright holders.

In my opinion, the ONLY way that is ever going to happen is if legislation is passed and the FCC regulates this.

In the case of radio stations – especially all those 1000’s of indies that are not even bothering to log or report their airplay, the ONLY way they will ever conform is if the FCC requires this logging. This is the number one way that independent artists could finally get compensated via performance royalties for their airplay. The current system which monitors only the major stations (who all play the same songs ad nauseum) is totally unfair.

Clubs and bars would also be required to survey and report their airplay as well.

So far I’ve commented on the monitoring aspects of figuring out who to pay. But this doesn’t address the central issue of where the money comes from.

In the case of radio stations, they are already paying their blanket license fees, so that is an established means of paying artists via their PRO’s.

But I think perhaps a legislated Universal Music Charge (“UMC”)could work to generate the funds to compensate the artists. In short, for every piece of equipment sold that plays music (DVD’s, CD’s, cell phones, etc.), for every ISP bill, for every phone bill, there could be a “UMC” assessed to cover the collective use of these “carriers” of the music product.

These methods – of surveying actual use and assessing universal fees – could give the consumer the illusion of “getting music for free” without the actuality, and artists could finally get fairly compensated for their work.

My feeling is artist and musicians should get paid, just like lawyers get paid or doctors, or pro atheletes. musicians should stop giving away their music for free,should stand up and take a stand, and get justly compensated for their work, sweat, and Blood.

Its funny to read these threads. I have worked in the music/entertainment business for the majority of my adult life and musicians consistantly(as a heard that is) ignore the central issue here. Most people are musically illiterate and could care less about all of the things that we quibble about here. The most important people in the music business are the people who play the CD Player/IPod/Radio. Not the guitar/piano/etc. The other factor is that the compound word MusicBusiness is actually backward. It should be BusinessMusic since the business is selling music. It doesnt have to be quality, it just has to sound good enough and make people want to listen to it…people who know precious little about music in general to begin with. Thats the long and short of it. If they can get it for free all the better. In addition in the era of little or no personal accountability and no integrity(I think I will sue McDonalds becuase I am fat…) the majority of people have no qualms about taking something that doesnt belong to them if they can get their hands on it. If I write a song and want to give it away that is one thing. However, if someone actively trys to take it from me by either hacking an encrypted product or some other subversive means then, sorry folks, that is theft. Doubleday, Microsoft, Apple Computer, even the New York Times would all agree and they know a little about such things. People are entitled to their own opinions, but not their own FACTS. Its called being in touch with reality. Now, some artists may be stuck with no money and a hand full of copyrighted songs, but that is THEIR choice. Compromise is always the way of progress, so what else is new? Lets get on with it…

I strongly agree with the direction that Jackie suggests. I also believe that Joel has brought up a very important issue that seems to have been lost in our culture: Ethics. The fact that appears to have become exceptable to go through this life with a sense of entitlement (stealing, ignoring private property rights)says a lot about where we are as a society. This needs to change, because if it does not, a very dangerous precedent has been set. We are inevitably diving into a spiritual black-hole that will leave us largely devoid of quality. Merely “accepting” piracy as the wave of the future also says something about our lack of motivation to fight for our rights. This is also a mindset that needs to change, for our very democracy depends upon it. If we continue to have this attitude, what “other” rights will we lose? Remember, it’s all about mindset; hence, this is not only about a musician’s right to get paid for their work, it is also about a much bigger issue.

As a musician, I (or my label) should have the right to set my own price. I should not have to be forced into branding or using ancillary means to make up for what I am not making from my stolen IP. Yes, there are other models being identified. That is fine. In a free market one is “free” to chose and set their own method for doing business. As an independent artist, the reality is that my band will NOT make money from being on a Nike ad; those spots are usually reserved for the big guys. Therefore, that model is not a realistic one for me and my band. We need to get paid for our music. It is our right.

I strongly agree with the direction that Jackie suggests. I also believe that Joel has brought up a very important issue that seems to have been lost in our culture: Ethics. The fact that it appears to have become exceptable to go through this life with a sense of entitlement (stealing, ignoring private property rights)says a lot about where we are as a society. This needs to change, because if it does not, a very dangerous precedent has been set. We are inevitably diving into a spiritual black-hole that will leave us largely devoid of quality. Merely “accepting” piracy as the wave of the future also says something about our lack of motivation to fight for our rights. This is also a mindset that needs to change, for our very democracy depends upon it. If we continue to have this attitude, what “other” rights will we lose? Remember, it’s all about mindset; hence, this is not only about a musician’s right to get paid for their work, it is also about a much bigger issue.

As a musician, I (or my label) should have the right to set my own price. I should not have to be forced into branding or using ancillary means to make up for what I am not making from my stolen IP. Yes, there are other models being identified. That is fine. In a free market one is “free” to choose and set their own method for doing business. As an independent artist, the reality is that my band will NOT make money from being on a Nike ad; those spots are usually reserved for the big guys. Therefore, that model is not a realistic one for me and my band. We need to get paid for our music. It is our right.

If you “could care less”, that means there are numerous other things you distain more, thus you nullify your own point everytime you use the phrase.

For example, Richard Todd Kearsley writes above: “Most people are musically illiterate and could care less about all of the things that we quibble about here.” Sounds like they are actually pretty interested.

A lot has been said about “private property” and “intellectual property” and pointing fingers at others who “steal” these things. But it reminds me of a comment I came across by a Native American in the 1700’s who had been “civilized” and dressed up and sent back east to live with the “civilized people”. Fairly quickly he came back to his tribe and one of his comments about his experience can be paraphrased as “I don’t understand how one man could have so much while others have nothing”.

In other words if we all could shift our paradigm to a kind of energy being shared, so in exchange for enjoying a recording, I would pay a certain value for that particular song in direct recognition and appreciation of the effort, craft, skill and focus required to create it. And if we can reduce the “business layers” with the use of technology, that sum might be more reasonable.

For example, I just bought a book cd for $20. I loaded on my computer and after listening to it I thought “I would love to share this with my husband, family members and friends. Will I do it if I have to pay $20 for each copy? No. Would I do it if the additional cost was $2? yes.

Could I just copy it and share it anyway without paying a cent? I don’t know, perhaps, but that would be “stealing” and would depend on whether I could sleep at night with that choice. I would guess that we all have a sliding scale in our minds about that. I imagine it is the source of the wide range of feelings among musicians about the PRO’s and their methods.

As for literacy, perhaps that is term that we could shift from since every single person will enjoy art to the extent they can – perhaps resonance might be a good substitute.

“People have cited Radiohead as an example of an artist that went free. They didn’t. No one could download the album for free – you had to pay a minimum ‘administration’ fee.”

This isn’t true; you could download the album for free, but if you chose to pay for it, there was a minimum administration fee. (The reason being that if you wanted to pay 20p for the album, it would have cost more than 20p to process the credit card payment.)

This is an interesting post. I am also a professional musician, composer and recording studio owner, and one of the bands that I have played with has had an album in limited release (as an independant release, not through a label).

I have never wanted to become “a big star” but I do want to make a living from playing and composing. So far, in this life, I have managed to do this-but what many seem to missing is that whenever a song (or any composition) is ripped off the artist/composer gets shorted even though the person who steals it thinks that it is just “the label” that is being “taught a lesson”. I cannot count the times that I have heard people say to me, “Well the artist only gets a penny or two so they won’t miss it.” Well, they do, and please spare me the argument that copyright infringement is not theft-it is. If you were to try to steal a patent that is intellectual (as well as other) property, that is still theft. The same principle applies to copyright, and the courts may even hold that the mere copyrightable idea can be protected if proof is submitted that the (your) idea existed before somebody else came up with it. I agree that perhaps copyright needs to be revisited but even then this does not excuse or make legal the idea that someone thinks that they are above whatever laws exist at this time.

Remember: the artist or label that is being hurt by copyright infringement is not always a major label or “big star”. Many an aspiring artist or startup record company (as well as print music publishers) will be affected as well.

The market determines, and should be allowed to continue, to drive sales. If music is, “free” what stimulus will there be to create, publish, market, and distribute our most important product; MUSIC. While no songwirter or publisher or marketer or distributer is in this businss for the money, providing compensation for ones work is a fundamental principal that must not be circumvented. Further, development of original thought and the logical follow through is the lynch pin of our economic system.

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Lizard, ushered a new kind of villainy into Spider-Man’s life.